United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
William Ray Baker, appearing pro se, filed this
action against defendants. (Docket 1). Plaintiff alleges
these defendants all have an affiliation with Rapid City
Regional Hospital. Id. According to plaintiff, the
grounds for his lawsuit include violations of: the Health
Insurance Portability and Accountability Act of 1996
(“HIPAA”); concerted activity protections under
the National Labor Relations Act (“NLRA”); and
the Occupational Safety and Health Act of 1970
support of his claims, plaintiff asserts the following facts.
Defendants Brent Phillips and Lia Green manage a health care
organization. Id. at p. 4. On Tuesday, November 1,
2016, Alyson Wiedrich sent an e-mail containing the names
Tresha Moreland, Paula McInerney-Hall, Richard Rice, John
Pierce, Tristina Weekley, Charlene Williams, Janel Brown,
Robert Wilson and Stephanie Rhodes. Id. The e-mail
followed an event where Nicholas Horning and Ms. Weekley
asked questions of Margaret Baker. Id. The
defendants obstructed an OSHA inspection. Id.
Plaintiff visited the OSHA Area District Office in Bismarck,
North Dakota. Id. The complaint also includes legal
conclusions regarding conspiracies to intentionally inflict
emotional distress on plaintiff. Id.
filed a motion to dismiss the complaint. (Docket 16). The
court grants their motion.
argue dismissal under Rule 12(b)(6) of the Federal Rules of
Civil Procedure is warranted because the complaint fails to
state a claim upon which the court can grant relief. (Docket
17). Defendants assert neither HIPAA nor OSHA provide
plaintiff with a private right of action. Id. at pp.
6-7. As to plaintiff's intentional infliction of
emotional distress claims, defendants Phillips and Green
argue plaintiff fails to meet Rule 12(b)(6). Id. at
pp. 9-10. Defendants contend dismissal under Rule 12(b)(1) is
proper for plaintiff's NLRA claim because the National
Labor Relations Board (“NLRB”) would have
exclusive jurisdiction over the claim. Id. at pp.
submitted three filings in response to defendants'
motion, and they contain numerous factual assertions beyond
those alleged in his complaint. (Dockets 20, 21 & 23).
The additional facts in plaintiff's responses are not
properly before the court and the court will not consider
them in ruling on defendants' motion. See Fischer v.
Minneapolis Pub. Sch., 792 F.3d 985, 990 n.4 (8th Cir.
2015) (“But Fischer failed to include these claims in
his complaint, failed to file an amended complaint by the
deadline, and did not later petition to court to amend his
complaint. Accordingly, these claims were not properly before
the district court.”) (internal citations omitted);
Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868
F.2d 992, 995 (8th Cir. 1989) (“[I]t is axiomatic that
a complaint may not be amended by the briefs in opposition to
a motion to dismiss.”); Midland Farms, LLC v. U.S.
Dep't of Agric., 35 F.Supp.3d 1056, 1066 (D.S.D.
2014) (“Midland may not amend its Complaint through an
argument raised in a brief in opposition to a motion to
dismiss.”) (collecting cases).
Rule 12(b)(6), a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Two “working principles” underlie Rule
12(b)(6) analysis. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). First, courts are not required to accept as
true legal conclusions “couched as . . . factual
allegation[s]” in the complaint. See id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (quoting Twombly, 550
U.S. at 555) (internal quotation marks omitted). The court
does, however, “take the plaintiff's factual
allegations as true.” Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). Second, the
plausibility standard is a “context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 678 (citation omitted). The complaint is analyzed
“as a whole, not parsed piece by piece to determine
whether each allegation, in isolation, is plausible.”
Braden, 588 F.3d at 594.
order to properly dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the complaint must be
successfully challenged on its face or on the factual
truthfulness of its averments.” Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (internal
citation omitted). “In a facial challenge to
jurisdiction, all of the factual allegations concerning
jurisdiction are presumed to be true and the motion [to
dismiss] is successful if the plaintiff fails to allege an
element necessary for subject matter jurisdiction.”
Id. (internal citation omitted).
“Jurisdictional issues, whether they involve questions
of law or of fact, are for the court to decide.”
Osborn v. United States, 918 F.2d 724, 729 (8th Cir.
applying these principles, the court must construe
plaintiff's pro se complaint liberally. See
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). This
means “that if the essence of an allegation is
discernible, even though it is not pleaded with legal nicety,
then the district court should construe the complaint in a
way that permits the layperson's claim to be considered
within the proper legal framework.” Jackson v.
Nixon, 747 F.3d 537, 544 (8th Cir. 2014) (internal
quotation marks omitted). The complaint “still must
allege sufficient facts to support the claims
advanced.” Stone, 364 F.3d at 914.
HIPAA claim fails “because HIPAA does not create a
private right of action.” Dodd v. Jones, 623
F.3d 563, 569 (8th Cir. 2010) (citing Adams v. Eureka
Fire Prot. Dist., 352 Fed.Appx. 137, 139 (8th Cir.
2009)); see Lafleur v. Jetzer, No. 4:14-CV-04175,
2015 WL 6157745, at *6 (D.S.D. Oct. 20, 2015) (citing this
holding in Dodd). The court grants defendants'
motion to dismiss plaintiff's HIPAA claim under Rule